Regulating the Internet like a utility is wrong approach

Federal Communications Commission Chairman Tom Wheeler has proposed reclassifying the Internet as a Title II telecommunications utility, paving the way to set formal rules and preventing providers from governing content.

Photo: Alex Wong / Getty Images

After years of contentious debate on net neutrality, there is good news and bad news in Washington. The good news is that there is strong bipartisan support for an open Internet. The bad news is that there is an increasingly partisan disagreement on how best to protect the open Internet.

Federal Communications Commission Chairman Tom Wheeler recently provided a preview of the open Internet rules he intends to enact, but this sneak peek was not well received by Republicans on Capitol Hill or by his Republican colleagues on the commission. Historically, Internet policy has been relatively free of partisan strife — but that may no longer be the case.

Over the past decade, preservation of the open Internet has galvanized political progressives, consumer advocates and policy advocacy groups. Advocates of net neutrality decry court rulings suggesting that the FCC might not have authority to protect the open Internet, and so utility-type regulation of broadband under Title II of the Communications Act is seen by many progressives — and by the president and his advisers — as the only way to unambiguously assure the FCC’s authority. Yet Title II regulation of the Internet seems like the wrong solution to those of us who support an open Internet but fear the impact of burdening still-evolving wired and wireless networks with centuries-old rules.

The U.S. government declaring the Internet an essential utility and applying Title II rules will also have an impact on policy deliberations about the Internet in other nations. Since the inception of the Internet, the U.S. government has urged international policymakers and regulators to exercise regulatory restraint. To reverse course at this critical time in the development of the global Internet seems self-defeating.

•Enforce prohibitions against wired and mobile Internet service providers from blocking access to lawful content and devices.

•Prohibit future “paid prioritization” deals under which content providers pay serve providers to have their content ahead of competitors.

•Prohibit “throttling” or slowing of Internet traffic.

•Require detailed disclosure of network management practices.

While Democrats in Congress expressed concern about other provisions of the draft bills, those principles could serve as both a baseline and springboard for further congressional deliberations.

A key benefit of a legislative solution is that it would provide assurance that some future commission won’t overturn proscriptions against network discrimination. Insistence on Title II regulation by a badly divided FCC only assures three things:

•The seemingly interminable fight over net neutrality will continue at the commission, in the Congress and in the courts.

•Regulatory uncertainty that will stifle investment and innovation in our nation’s most critical infrastructure will continue.

•Policymakers and regulators in other nations will be encouraged to regulate an Internet that has thrived precisely because of the lack of government interference.

One year ago it would have been considered a historic victory of monumental proportions for Congress to pass open Internet legislation. And there is still time for a bipartisan legislative endorsement of the open Internet today, without resorting to Title II.

Both sides of the political spectrum need to ask themselves if they are more interested in making good policy or making a point. If Republicans and Democrats would embrace the opportunity to craft a legislative solution and declare victory, the ultimate winners would be those of us who want to see the Internet remain open — not just here in America, but globally.

Larry Irving is a former U.S. assistant secretary of commerce. He is now the CEO of the Irving Group, a consulting firm that provides advisory services to technology and telecommunications companies. He also is founding co-chairman of the Internet Innovation Alliance, a nonprofit advocacy group that includes telecommunications companies. To comment, submit your letter to the editor at www.sfgate.com/submissions/#1.